Sen. Specter Addresses Concerns About His
"Report on the Investigation of Espionage Allegations
Against Dr. Wen Ho Lee"

Sen. Arlen Specter today sent a memo to Sen. Charles Grassley addressing Sen. Grassley's concerns about Sen. Specter's March 8 "Report on the Investigation of Espionage Allegations Against Dr. Wen Ho Lee." Following are the major items in that memo:

Senator Grassley's key concern -- that the Attorney General was right to reject the FISA -- was not among the 14 concerns presented in writing on February 18 ... The first time it was presented as an objection was in the first draft of his letter on March 7.

1) No mention of the actual relationship with Wen Ho and Sylvia Lee w/other government agencies. The report does acknowledge that Dr. Lee assisted the FBI in its investigation of the LLNL scientist, but does not go beyond that because we do not have access to the full record with regard to Sylvia Lee ... That was one of the key concerns Director Freeh had -- that hearings on that subject could provide a basis for motions by Dr. Lee's lawyers to request testimony, etc. The Director made it clear that a review of documents would be acceptable but testimony about things that were not already a matter of public record would cause a problem.

2) No mention of disagreement among scientists regarding source and content. This point is addressed on page 52 of the report, as follows:

"The September 1999 decision by the FBI and the DOJ to expand
the investigation of suspected Chinese nuclear espionage is
puzzling, primarily because it should have happened long ago.

Assistant FBI Director Neil Gallagher's November 10, 1999
letter on the question of why the investigation is being reopened
raises more questions than it answers. He acknowledges that when
discussing the DOE's Administrative Inquiry (AI) during his June
9, 1999, testimony before the Governmental Affairs Committee,
he stated that he "had full credibility in the report," had
"found nothing in DOE's AI, nor the conclusions drawn from it to
be erroneous," and stated there is a "compelling case made in the
AI to warrant focusing on Los Alamos."

As a result of further inquiry, however, Mr. Gallagher now
has reason to question the conclusions of the AI. He cites an
August 20, 1999, interview by FBI officials of one of the
scientists who participated in the technical portion of the AI,
in which the scientist "stated that he had expressed a dissenting
opinion with respect to the technical aspects of the AI," and
points out that the statement of this scientist is "in direct
conflict with the AI submitted to the FBI because the AI does not
reflect any dissension by the 'DOE Nuclear Weapons Experts.'" (emphasis added)

Although both the FBI and the DOE have repeatedly promised to do so, neither agency has yet provided an answer as to how many scientists were involved in the technical review mentioned in the August 1999 interview, and what the majority opinion of that group really was. Mr. Gallegher explains that "a review has been initiated by the FBI to re-evaluate the scope of the AI," and that "the focus of this new initiative is to determine the full universe of both compromised restricted nuclear weapons information and who had access to that information in addition to anyone identified in the original AI."

Moreover, on pages 18-19, the report takes the FBI to task for closing down the investigation because of concerns about the source of the walk-in and whether or not that person was under PRC control. In particular, the report notes that the investigation should not have been halted because the FBI already had an existing investigation that pre-dated the W-88 investigation, and that should have been pursued -- regardless of any concerns about the Administrative Inquiry or the W-88 allegations.

3) No mention that FISA [criteria] on a US citizen are stricter. This issue is addressed on page 31 as follows:

"Attorney General Reno demonstrated an unfamiliarity with
technical requirements of Section 1802 versus Section 1804. She
was questioned about the higher standard under 1802 than 1804:
"It seems the statutory scheme is a lot tougher on 1802 on its
face."

Attorney General Reno replied: "Well I don't know. I've got
to make a finding that under 1804, that it satisfies the
requirement and criteria -- and requirement of such application
as set forth in the chapter, and it's fairly detailed."

4) No protest by FBI to Justice regarding turning down FISA. The report makes it clear that the FBI did not act properly after the FISA was rejected, as noted in the following excerpt from pages 38-39:

"After the rejection of the FISA warrant request on August
12, it took the FBI three and one-half months to send a memo
dated December 19, 1997, to the Albuquerque field office listing
fifteen investigative steps that should be taken to move the
investigation forward. The Albuquerque field office did not
respond directly until November 10, 1998."

5) Calling a hug in public a "clandestine" activity. The report does not call the hug a clandestine activity. The hug itself was not clandestine -- it was merely proof positive that Dr. Lee had a relationship with an individual he never reported knowing, a relationship that he had a duty to report. This point is made clear on page 12, where the report states:

"This investigation of Dr. Lee was initiated based upon the
discovery that he was well acquainted with a high-ranking Chinese
nuclear scientist who visited Los Alamos as part of a delegation
in 1994. Dr. Lee had never reported meeting this scientist,
which he was required to do by DOE regulations, so his
relationship with this person aroused the FBI's concern.
Unclassified sources have reported that Dr. Lee was greeted by
"a leading scientist in China's nuclear weapons program who then
made it clear to others in the meeting that Lee had been helpful
to China's nuclear program."

This point is further amplified on pages 23-24, where the report notes that: "Though Wen-Ho Lee had visited IAPCM in both 1986 and 1988 and had filed "contact reports" claiming to recount all of the Chinese scientists he met there, he had failed to disclose his relationship with the PRC scientist who visited LANL in 1994."

It should be noted that Dr. Peter Lee was sentenced to 6 months in a half-way house and a $10,000 fine for a similar failure to accurately fill out a report after a visit to China. It seems inconsistent that in Peter Lee's case, such a failure is a Federal crime, but in Wen Ho Lee's case, it does not even constitute an element of probable cause for a search warrant.

6) The reason a FISA has never been turned down is that Justice always reviews first. Nothing in the investigation indicates that this is the reason that FISA requests are not turned down. It would be more accurate to say that [the reason] they are not turned down is that the FISA court finds probable cause to issue the warrant.

7) Curran is quoted extensively, but no mention of baggage. Mr. Curran is mentioned only once in the report, as follows on pages 42-43:

"Even more important than the question of why DOE, rather
than FBI, administered this polygraph is the way the results were
reported. It should be noted that, as late as March 2000, there
still exists considerable disagreement between the FBI and the
DOE regarding the sequence and timing of events related to the
production of information about the December 23, 1998 polygraph.
When given an opportunity to contest the FBI's representation of
the facts, DOE's Mr. Ed Curran said they were incorrect, but was
not prepared with specific contradictory information to offer as
evidence. The resolution of these disagreements may ultimately
turn on the credibility of the individuals involved in the
disagreement, and will be the subject of a future subcommittee
hearing."

8) Everyone agrees, he passed the DOE polygraph as stated in open court and in the post. Everyone does not agree that Dr. Lee passed the polygraph. What everyone agrees is that the DOE told Dr. Lee and the FBI that he passed the polygraph. No one else who has reviewed the polygraph has concluded that he passed. The Armed Forces Polygraph Institute rated it a "No Opinion," the FBI concluded that it was, as best, inconclusive. We spoke to Mr. Richard Kiefer, President of the American Polygraph Association, who was quoted on CBS News about the polygraph. He said he had concerns about the methodology used by the Wackenhut polygraph experts, and that he would not call it a passed polygraph. He said that CBS selectively edited his remarks for TV in a manner that did not reflect his full views. Even Secretary Richardson and Ed Curran have publicly stated that Dr. Lee failed the December 23, 1998 polygraph -- Secretary Richardson on national TV (after saying that he passed, he later described it as a failure) and Mr. Curran is quoted directly in a November 1999 magazine article. If there is any substantive conclusion that can and should be made on the basis of the report, it is that Dr. Lee did not pass the December 23, 1998 polygraph. There are some who would not go so far as to say he failed it, but there is no remaining disagreement (beyond his lawyers) that it is incorrect to say that he passed that exam.

9) No mention of dissenting opinions from Albuquerque. No interview of Lueckenhoff. The reason that Mr. Lueckenhoff has not been interviewed is because the FBI indicated that we could review documents but should not do anything to create a new record ... It is my understanding that steps are underway for Mr. Lueckenhoff to be interviewed. However, the report does state clearly that the January 22, 1999 memo from Albuquerque concludes that the investigation of Dr. Lee should not be pursued. (See the top of page 46).

10) No mention of memos pushing action due to Cox Report (politicization). This issue is addressed directly on pages 42-43 of the report, which states that:

"There was no good reason for DOE to polygraph Dr. Lee in
late 1998. There was no sudden change in status on the case: the
last warning from the FBI about the need to remove Dr. Lee's
classified access to protect national security had come some
fourteen months before, in October 1997. Available Department
of Energy documents do not address this question. Other sources,
including an FBI HQ memorandum for Director Freeh, dated December
21, 1998, and a sworn deposition from an FBI agent who worked on
the case, indicate that senior DOE officials were concerned abou
tthe imminent release of the Cox Committee report and wanted to
bring the case to a conclusion. (Emphasis added)

11) No mention of Gallagher's possible misleading of Congress and DOJ. This issue is not addressed because the investigation into this issue, begun by a joint letter signed on December 6, 1999, by Senators Specter, Torricelli and Grassley, was put on hold when the Director of the FBI requested that hearings be postponed.

12) No mention of AQ re-analysis and current efforts to find W-88 suspect. This subject is addressed extensively on pages 51-54 of the report, which says:

Reopening the W-88 Investigation and the Criminal Case Against
Dr. Lee

The September 1999 decision by the FBI and the DOJ to expand
the investigation of suspected Chinese nuclear espionage is
puzzling, primarily because it should have happened long ago....

The delay by DOJ and the FBI until September 1999 is
perplexing since four governmental reports had concluded, with
varying degrees of specificity, that the losses of classified
information extended beyond W-88 design information and beyond
Los Alamos....

Thus, the failure to
reopen the investigation into the loss of W-88 design information
much sooner, or to even initiate an investigation of the other
losses, simply continued that pattern of errors. (Emphasis added)

13) No mention of friction between DOE HQ (Trulock) and LANL. This is not mentioned because the Administrative Inquiry stands on its own -- it was the submission of the DOE to the FBI, regardless of whether there was a difference of opinion along the way.

14) No mention that Lee not indicted for what he was originally investigated for. The report does not use the word indict, but it does make clear that Dr. Lee stands accused of downloading classified files. It also notes that Dr. Lee was investigated for reasons that extend beyond the W-88, so even if one discounts the allegations in the Administrative Inquiry, there were problems with the investigation. These are noted. Perhaps the most direct statement of this is on pages 7-8, where the report notes that:

"Dr. Wen Ho Lee was investigated on multiple occasions over
seventeen years, but none of these investigations -- or the
security measures in place at Los Alamos -- came close to
discovering and preventing Dr. Lee from putting the national
security at risk by placing highly classified nuclear secrets on
an unsecure system where they could easily be accessed by even
unsophisticated hackers.> It is difficult to comprehend how
officials entrusted with the responsibility for protecting our
national security could have failed to discover what was really
happening with Dr. Lee, given all the indicators that were
present.

The report also makes abundantly clear that the investigation failed to detect and prevent Dr. Lee's unauthorized downloading. This is stated in several places, but perhaps most clearly on pages 16-17, which states:

"The end result of these missteps and lack of communication
was that, during some of the very time that the FBI had an
espionage investigation open on Dr. Lee resulting from his
unreported contacts with a top Chinese scientist and the
realization that the Chinese were using codes to which Dr. Lee
had unique access, DOE computer personnel were being warned by
the NADIR system that Dr. Lee was moving suspiciously large
amounts of information around, but were ignoring those warnings
and were not passing them on to the FBI.

The near perfect correlation between the allegations which
began the 1994-1995 investigation and Dr. Lee's computer
activities is stunning. The codes the Chinese were known to be
using were computer codes, yet FBI and DOE counter-intelligence
officials never managed to discover these massive file transfers.
Where, if not on his computer, were they looking? And, as for
the lab computer personnel who saw but ignored the NADIR reports,
what possible explanation can there be for a failure to conduct
even the most minimal investigation?"